1.17 F. Advocacy for Expressed Wishes Versus Best Interests

F. Advocacy for Expressed Wishes Versus
Best Interests

Rule 1.14 requires a lawyer to maintain a conventional relationship with a client with diminished capacity “as far as reasonably possible.”⁹² This means advocating for the client’s expressed wishes. At the same time, Rule 1.14 recognizes that a client’s incapacity “casts additional responsibility on the lawyer” and that “protective action” may be necessary in order to protect a client’s interests.⁹³ Thus, lawyers are asked to balance competing directives to advocate for the preferences of a client while protecting the client’s best interests.⁹⁴ This can be difficult to do, and the temptation for the lawyer to impose the lawyer’s own view of best interests on a client can be great when a client’s judgment is impaired.

The trend in legislation and case law over the past 30 or more years has favored an advocacy or adversarial model in which the lawyer advocates for the client’s wishes over a best interests approach in which the lawyer substitutes the lawyer’s view of the client’s interests.⁹⁵ The New Jersey case of In re M.R. illustrates the advocacy approach to representation and, although not binding in New York, offers persuasive guidance regarding the role of the lawyer.⁹⁶ In M.R., the court specifically addressed the role of the attorney for a developmentally disabled adult in a contested guardianship proceeding. At issue was whether M.R., a “generally incompetent” adult woman, had capacity to choose where to live, and which party would bear the burden of proving capacity or incapacity for such decision making.⁹⁷ In defining the attorney’s role in this case, the court began with the premise that all people, including people with developmental disabilities, should have the right of self-determination:⁹⁸

First, a declaration of incompetency does not deprive a developmentally disabled person of the right to make all decisions. The primary duty of the attorney for such a person is to protect that person’s rights, including the right to make decisions on specific matters. Generally, the attorney should advocate any decision made by the developmentally disabled person.⁹⁹

The M.R. court tempered the client’s right to fully make decisions, however, with concern for best interests.¹⁰⁰ On perceiving a conflict between that person’s preferences and best interests, the attorney may inform the court of the possible need for a guardian ad litem.¹⁰¹ Nevertheless, the role of the attorney, as distinguished from...